32 Minn. 319 | Minn. | 1884
It appears by the pleadings, upon which this cause' is to be determined, that the plaintiff is the owner of a lot of land fronting upon a public street in the city of Minneapolis, owning the fee, subject to the public easement, to the centre of the street. In
It is not claimed that there has been any misconduct in the manner of performing the work of raising the street to the new grade. The principal question presented is whether the city is liable to respond in damages for this consequential injury to the plaintiff’s property.
The municipal charter expressly empowers the city council to establish the grade of any street, and, by a' vote of two-thirds of the members, to change the grade of any street after it has been established. Sp. Laws 1881, c. 76, sube. 8, § 2. By a long current of decisions, almost without dissent, the law has been declared to be that the owner of property adjacent to a public street is not entitled to a remedy for injuries resulting from the exercise, in a proper manner, of lawful authority in establishing or changing the grade of the street. Governor, etc., v. Meredith, 4 Term Rep. 794; Boulton v. Crowther, 2 Barn. & C. 703; Smith v. Washington, 20 How. 135; Callender v. Marsh, 1 Pick. 418 ; Skinner v. Hartford Bridge Co., 29 Conn. 523; Burritt v. City of New Haven, 42 Conn. 174; Radcliff v. Brooklyn, 4 N. Y. 195; Plum v. Morris Canal & Banking Co., 10 N.
To the extent of denying a right of recovery for consequential injuries from an original establishment of grade, this court has recognized the law to be as here declared, in Lee v. City of Minneapolis, 22 Minn. 13; Alden v. City of Minneapolis, 24 Minn. 254; and O’Brien v. City of St. Paul, 25 Minn. 331, 334. We have, however, considered that a municipal corporation will be liable for damages caused to private property by grading streets, when a private owner of the soil over which the streets are laid would be liable if he were making the same improvement upon his own land for his own use. O’Brien v. City of St. Paul, supra; Dyer v. City of St. Paul, 27 Minn. 457; Armstrong v. City of St. Paul, 30 Minn. 299.
But this case is obviously not within the limitation of the general principle upon which those cases rest, and is to be governed by the general rule of law above asserted. In principle there is no difference between the case of injuries resulting from an original establishment of a grade, and those resulting from an authorized change of an established grade. Authorities above cited; and see Karst v. St. Paul, etc., R. Co., 22 Minn. 118. In both cases the principle is the same; that is, a public right acquired, to which individual convenience and interest are subject. Upon the acquisition by the public, from the original owner of the soil, of the right to use the land for the purposes of a street, whether that right is acquired by purchase, as by condemnation proceedings, or by gift or estoppel, as by dedication and acceptance, the right of the public to such use of the land as may be consistent with those purposes becomes as absolute as is the right of any owner of land to the use of it for his own purposes. Thenceforth it is the right of the public, subject to any statutory restrictions which may be imposed, to have the land prepared and kept in ñt condition for use as a street; to have it improved and changed from time to time, as
The decisions to which we are referred, sustaining the right of an individual proprietor of lands upon a street to the use of the same for access to his premises, and giving a remedy for an unauthorized interference with that right, are not opposed to the principle controlling this case. The fact which distinguishes tllis case, and which did not exist in those, has been already stated, viz., that when this street was established the public acquired the right, as against the owner of this land, to do the acts complained of, as incident to the easement.
It is claimed that certain provisions of the city charter, providing for ascertaining “the amount of all damages occasioned to any private property by reason of any public works or structures,” should be so construed as to sustain a right of recovery. We find no reason to so construe the act. These terms of the act were not employed for the purpose of conferring a right to compensation where none existed before, but merely with reference to providing a method of ascertaining the compensation to be paid for such taking of or injuries to property as, under the existing law, entitled the owner to compensation.
Judgment affirmed.